Monday, February 28, 2011

I wonder what defense attorneys for Joshua Komisarjevksy were up to when they asked trial Judge Jon Blue if they could show photos of the crime scene to jurors during voir dire.

Voir dire is the legal term for the process whereby attorneys question prospective jurors for suitability. Each side gets to ask a certain number of challenge questions to jurors.

I'm trying unsuccessfully to think of questions defense attorneys could ask of a juror that would make a difference when the prosecution begins its case. Defense attorneys will have to be content with taking their chances on finding that jury which will nullify the evidence. Cases of jury nullification are rare, but not unheard of.

The defense request for showing the photos to jurors was accompanied by another motion for a change of venue. The judge has yet to rule on that motion.

Komisarjevsky's lawyers say the man accused of participating in the rape and murders of three female members of Dr. William Petit's family couldn't get a fair trial in New Haven, Conn. But where besides Madagascar could you go to find someone who hasn't heard of the horrific Connecticut home invasion triple murders and sexual assaults?

Blue has also ruled on allowing tweeting from the courtroom when Komisarjevsky is tried. Komisarjevsky's lawyers wanted to bar courtroom tweeting.

Komisarjevsky and Steven Hayes were arrested after fleeing the Petit home, leaving the place in flames, and crashing into a police car waiting outside. Perhaps defense lawyers will argue that Hayes and Komisarjevsky were on their way to a birthday party for Komisarjevksy's daughter. That Komisarjevsky even has a daughter is nauseating — and leaves another victim of his wake.

The challenges for Komisarjevky's lawyers are huge. The Hayes trial, like the crime itself, generated a large amount of publicity, some of which cast Komisarjevky as a demon possessed.

Among the number of charges for which Hayes was convicted, one charge was missing — the rape of 11-year-old Michaela. Hayes told police that Komisarjevksy raped Michaela, an act that combines with other crimes to qualify as a death penalty case.

In order to save Komisarjevsky from the death penalty, his lawyers have requested that their client be seated closer to the jury. The psychological impact of proximity is aimed at humanizing Komisarjevsky.

That's the thinking anyway. I kind of agree with the defense attorneys there. If I were a juror, I'd love for Komisarjevsky to be sitting where I could get my hands on him.

I couldn't survive voir dire, obviously. As for humanizing the defendant, good luck with that.

Blue refused to remove Petit from the pre-trial hearings but said he'd consider it an open question if raised during the regular trial set to begin in September 19. The reason for the long delay between trials is necessary because the process of jury selection is expected to be lengthy.

The process of jury selection is set for March 16. A total of 21 jurors will be selected — 12 regular jurors, six alternates, and three backup jurors.

Anthony Ventre is a freelance writer who has written for several weekly and daily newspapers, for Demand Studios, and for AOL Online. He is a former news director for radio station KPEN in Los Altos, Calif. He enjoys news and fiction writing and is currently working on a crime novel.

Attorneys for state Sen. Roderick Wright will try to get the Inglewood Democrat's eight-count felony indictment thrown out by arguing that prosecutors misled grand jurors weighing whether he lived in his district, in part by not telling them about relevant case law and election codes.

Los Angeles County Superior Court Judge Kathleen Kennedy is expected to take up the motion to dismiss the case, along with the prosecution's response, during a pretrial conference Thursday.

The district attorney's office obtained an indictment on two counts of perjury, one count of filing a false declaration of candidacy and five counts of voting fraud, all stemming from Wright's claim to have been living in a multi-family complex he bought some three decades ago in Inglewood, in the 25th Senate District he represents. Prosecutors allege he instead lived at a single-family home in Baldwin Hills, outside the district, and lied about it to run for office.

Prosecutors also alleged that Wright had concocted a phony residence in a friend's home to run for a Los Angeles City Council seat in 2003, according to a grand jury transcript. The circumstances of that unsuccessful race are not part of the indictment, but prosecutors cited it in attempt to show a pattern of deceptive behavior.

Wright has pleaded not guilty and is free on $45,000 bail.

"The law governing one's legal residence, or 'domicile,' for voting purposes … is considerably more complicated than the district attorney led the grand jury to believe," Wright's lawyers, Fredric D. Woocher and Winston Kevin McKesson, say in their 33-page rebuttal filed with the court. "Indeed, the term 'live' is not used once in the numerous statutory provisions defining 'residence' and 'domicile' for voting purposes."

They cite California Elections Code Section 2026, which states the "domicile of a member of the Legislature ... shall be conclusively presumed to be at the residence address indicated on that person's currently filed affidavit of registration."

The attorneys also argue that a search of Wright's Baldwin Hills and Inglewood properties in 2009 was "irrelevant" because Wright by then had moved most of his personal belongings to Sacramento, where he has spent the bulk of his time since elected in 2008.

When he is in Southern California, Wright's attorneys contend, the senator splits his time between the Inglewood property, where he rents a room, and the Baldwin Hills house, where he conducts business.

In briefs arguing against the motion to dismiss, Deputy Dist. Atty. Sandi Roth said the Elections Code section cited by Wright's attorneys applies to incumbents, not candidates. She said she did not mention it to grand jurors "because it is wholly inapplicable in this case."

Additionally, she said, the section "was never intended to grant immunity from prosecution to those who falsify their residence address with the intent to deceive voters."

Roth reiterated in court briefs evidence that Wright lived in Baldwin Hills, including utility bills, personnel records of the Legislature, an emergency contact listing and a statement from the woman with whom he purportedly shared the Inglewood home, stating that he did not live there.

Prosecutors alleged that Wright had devised a scheme to register to vote, sign candidacy papers (under penalty of perjury) and illegally vote in five elections using the Inglewood address while living in Baldwin Hills.

Wright's attorneys said that he had always intended to make the Inglewood property, which he bought in 1977, his permanent home and that he used the Baldwin Hills home, purchased in 2000 as an investment property, mainly for business, not as his residence.

Saturday, February 26, 2011

Jury duty just got more intrusive. The next time you get the call, expect attorneys to know a lot more about you. Jury consultants are now looking at your Facebook account to decide whether or not you're suitable for the jury.

"Privacy is not what it was 10 years ago," says William Taylor, practicing lawyer in Denver and director of Cyopsis IT Forensics and Investigations.

Using Facebook as background checks for the courts is nothing new.

"As long as we`ve been able to Google we`ve been able to look at information," says Litigation Consultant, Ken Broda-Bahm. "The average content of a Facebook landing page tells you more about a juror in a quick read than you will find out in 45 minutes of questioning a juror," adds Taylor.

Today it's standard practice for lawyers and jury consultants to use social networks to research jurors.

"'I`m well aware of lawyers who do this on a routine matter I`ve done it myself in some cases," Taylor says.

"It`s not just Facebook it`s really anything that`s out there on the Internet," says Broad-Bahm.

MySpace, Twitter, blogs and personal websites can all be relevant in finding out who you are to help legal experts weed out a bias opinion.

Until this new practice is regulated by the law, any public information found out about your on the web is fair game.

"You should expect that if you are called in for jury duty or if you are going for a job interview then someone can look at that information," Broda-Bahm says.

Instead of being paid up to $99.9 million, as initially agreed, attorney Dennis Gingold says he other lawyers deserve at least $224 million for their work on the case since 1996.

He and other lawyers "have achieved a stunning landmark victory in this case," Gingold wrote in a 25-page motion filed Jan. 25 in federal court in Washington. "No lawyers have done so much for so many people in this circuit."

Not only was the $3.4 billion settlement a record for Native American claims against the government, but the lawyers also "accomplished that which Congress could not do and the (U.S.) attorney general would not do, and have aided a group long abused to stand up against the abuse," Gingold wrote.

For their efforts, $99.9 million "is so far below governing standards that it would be inconsistent with federal law," Gingold said. Instead, he, Thaddeus Holt, Keith Harper and other lawyers deserve at least $223 million in fees, plus $1.3 million in expenses and other costs, Gingold said.

U.S. District Judge Thomas Hogan has not ruled on the request, but the Justice Department has filed a motion opposing it, and two senators who played a key role in approving the settlement called it outrageous.

Former Sen. Byron Dorgan, a North Dakota Democrat who chaired the Senate Indian Affairs Committee, called the fee demand "shameful" and said "every dollar from the settlement that goes to the lawyers is a dollar that is taken away from the victims."

Dorgan called it a "cruel irony" that the same lawyers who were working on behalf of Native Americans are now arguing against their interests.

"It just makes me angry," said Dorgan, who retired in January and now works as a policy adviser at a Washington law firm.

Native Americans "were the real victims hurt in this case," he said. "This should not be, in the end, how much the lawyers get."

Emily Lawrimore, a spokeswoman for Sen. John Barrasso, R-Wyo., said Friday that Barrasso believes the settlement included extremely generous compensation for the plaintiff's attorneys.

"They agreed not to ask for more than $99.9 million in attorneys' fees, and that was the message they sent to Congress and Indian Country before the settlement bill was signed into law," Lawrimore said. "Every extra dollar the lawyers receive will mean less money reaches the folks who need it most in Indian country."

The Justice Department, in its brief, called the request "grossly excessive" and said the lawyers should receive $50 million, the minimum amount agreed to under the settlement.

Fifty million dollars "is more than fair and reasonable in light of the record in this case," Assistant Attorney General Tony West wrote.

Gingold, in a telephone interview Friday from South Dakota, where he is meeting with Native American groups about the case, said his request for more money was justified, adding, "There's no surprise here."

Under the settlement, $99.9 million is not a cap on legal fees, as Dorgan and Barrasso contend, Gingold said. Instead it is a "clear sailing" figure that prevents the Justice Department from filing an appeal. An award by Hogan for more than $99.9 million in legal fees is subject to appeal, Gingold said.

Gingold said he and Holt have been working on the case since December 1995 and have not been paid by the plaintiffs in all that time. He called it a "seven-day-a-week" case that has forced him to abandon his Washington law practice.

The lawyers represent Elouise Cobell, a Montana resident and member of the Blackfeet Tribe who was the lead plaintiff in a 15-year battle to reclaim royalties lost by Native Americans for more than a century. At least 300,000 Native Americans say they were swindled out of royalties overseen by the Interior Department since 1887 for oil, gas, grazing and timber rights.

Congress approved the $3.4 billion settlement in December.

The settlement calls for $1.5 billion to go to individual Indian account holders — a number that will likely end up between 300,000 and 550,000. About $1.9 billion would be used by the government to buy broken up Indian lands from individual owners and then turn those lands over to tribes. An additional $60 million would go to a scholarship fund for Indian students.

Cobell, who stands to win $2 million, said Gingold and the other lawyers deserve the money they are seeking.

"You've got to think about how many years of litigation we had — and this was not easy litigation," she said Friday. "It was tough, contentious litigation."

The victory achieved in the case goes far beyond money, Cobell said.

"What it means is, we have rights now," she said. "We have statutes and laws that we never had before and finally, finally individual Indians mean something to the government. They can't get away with what they got away with in the past."

Cobell said she has been forced to raise about $13 million for legal costs, including oil and gas experts, accountants and other specialists. The money has come from individual donations and grants from foundations that in most cases must be repaid. Gingold has requested more than $13 million in reimbursements for Cobell and three other named plaintiffs in the case.

Monday, February 21, 2011

Faced with drastic budget cuts that have forced the early retirement of dozens of prosecutors, the Los Angeles City Attorney's Office has turned to training law school graduates or entry-level attorneys who volunteer to try criminal cases for free.

More than 100 of these volunteers have tried more than 250 misdemeanor criminal cases - ranging from DUIs, battery, domestic violence and vandalism charges - since City Attorney Carmen Trutanich launched the program in September 2009.

The volunteers, all of whom have passed the bar, go through a month of training and then prosecute cases for five months. They have helped fill in a gap left by the loss of about 70 prosecutors who took early retirement packages after an 18 percent cut to the office's budget in 2009 as the city struggled to make ends meet.

"To lose 70, 80 bodies and not have any way of putting somebody in their places was going to hurt," Trutanich said. "It was going to hurt bad."

The program, modeled after military reserve programs, asks the reserve prosecutors to return to try cases for two weeks each year after their terms are up. Volunteers must complete their terms or reimburse the City Attorney's Office for the cost of training, which amounts to about $5,000 per volunteer.

Each training class adds about 15 to 20 volunteer prosecutors to the force and teaches them basics such as what to wear, selecting a jury, examining witnesses, arguing sentencing recommendations and delivering opening and closing statements.

"We teach them things that you learn over time in a courtroom," Trutanich said. "We give them the resonance of years of experience in a 30-day period, and then they get to practice."

The City Attorney's Office receives between 115,000 to 120,000 criminal cases each year - some of which include potential felony cases that the District Attorney's Office declines to take - and files about 65,000 to 70,000.

"We could file more if we had more bodies," said Trutanich, who oversees an $85 million budget and 507 paid attorneys. "We don't have the bodies to handle the cases."

The program has emerged as a hands-on training ground for young attorneys, several of whom have gone on to be hired by the state Attorney General's Office, the Santa Monica City Attorney's Office and the Ventura County District Attorney's Office.

"It really was a perfect transition because law school teaches you how to think like a lawyer, but the city attorney program really taught me how to be a lawyer," said Andrew Mulkeen, a Studio City resident who graduated from University of Virginia in 2009.

Mulkeen, part of the inaugural volunteer prosecutor class, had been recruited by Mayer Brown, a prominent law firm, while he was still in school, but was told he could not be hired until the next year. To get experience, he went through the prosecutor program on a public interest fellowship, prosecuted eight jury trials including assault with a deadly weapon and employee theft cases - and won all of them.

"I got incredible training and experience that I really wouldn't be able to get anywhere else just out of law school," said Mulkeen, who now practices civil law. "The city essentially gets a free prosecutor. And the firm, at the end of the year, got an associate."

But the necessity for the city to use free labor coupled with the fact that grads can't find jobs could lead to less experienced and lower-quality attorneys trying cases for the city, said Gregory Keating, a law professor at University of Southern California.

Law school graduates are emerging from school to face a bleak job market in what is considered the worst recession for lawyers in 40 years. Large law firms have shed some 15,000 legal jobs since 2008, according to experts.

"You can't be choosy when you're getting people for free," Keating said.

"You wouldn't expect it to raise the quality of lawyering in general because you wouldn't do this on either side unless you have to.'

But the program is seeing more competition for spots on its roster as recruitment efforts ramp up. About 70 people from across the country have applied for the next session. And the volunteers' win-loss ratio is on par with full-time prosecutors, said Sue Frauens, assistant city attorney in charge of the training program.

"The talent pool has been phenomenal," Frauens said. "We're very regretful that we're letting a lot of good talent go, knowing that the prospect of being able to hire them in the future is nonexistent."

The volunteers are assigned to cases that are relatively straightforward to prosecute and tend to be less complex than other criminal cases.

For Josef Castiel, a volunteer prosecutor based out of the city attorney's Chatsworth branch, the program helped him realize that criminal law was his passion. Castiel of Porter Ranch had gone into civil law when he graduated from Rutgers University in 2008, "and hated it so much I thought I didn't want to be a lawyer anymore."

At the end of his five-month term in 2010, he was asked to stay in his volunteer capacity to fill in for a paid prosecutor who went on maternity leave. Although he continues to be unpaid, his savings from his civil law job help tide him over while he looks for a paid job, all while he continues to get trial experience under his belt.

Having gone through the program has given him a leg up on the competition, Castiel said.

"I can intellectually talk about what it means to be an attorney from experience," Castiel said. "I can actually sit down and talk about concepts of defense strategies and legal footwork strategies and that definitely interests employers. Putting it on the resume is definitely the biggest flare that catches everybody's attention among the sea of applicants."

It's a win-win situation for both sides, said Gregory Ogden, a law professor at Pepperdine University.

"It's not as good as being hired for a job, but it's better than working in a non-legal jobs," Ogden said. "The economics... are now so bad that a lot of operations are not replacing people who leave. So that means that the workload on those left is much higher, or they have to come up with something like this.

"It gets the work done, and they don't have to pay for it," he said. "It's a better alternative than saying, `We're not going to prosecute certain crimes,' which some cities (have done)."

Phill Kline returns to Kansas today to answer allegations that he misled judges and mishandled evidence in his dogged pursuit of abortion clinics.

Hanging in the balance is Kline’s reputation, his law license and the final verdict on his long investigation of Planned Parenthood and Wichita abortion provider George Tiller, who was slain in 2009.

Kline, a Republican and former attorney general and Johnson County district attorney, now teaches law at Liberty University in Virginia. His Kansas law license is inactive, but a finding that he violated his professional ethics could make it more difficult for him to join the bar in another state.

Kline last week declined to publicly discuss the case against him. So did his attorneys and a publicist representing him.

But Kline has no shortage of vocal defenders. Anti-abortion groups such as Kansans for Life and Operation Rescue contend the hearings are an attempt to tarnish Kline’s work and protect abortion providers from prosecution.

Mary Kay Culp, director of Kansans for Life, said she wished the courts were as concerned about the criminal allegations raised by Kline as they are about the ethics accusations facing him.

“If this were any other man, if this were any other issue, I don’t think this would be happening,” Culp said of today’s hearings.

A panel of three lawyers will sit in judgment of Kline. Seven days have been set aside for the hearing, which is drawing national attention.

Disciplinary administrator Stanton Hazlett will present evidence in support of the allegations, and attorneys for Kline will mount his defense. Witnesses — including a judge who oversaw parts of Kline’s investigation — will testify.

If the panel finds Kline in violation of ethical rules, it will recommend any discipline to the Kansas Supreme Court. Punishment could range from censure to disbarment.

Kline’s investigation of Planned Parenthood and Tiller began shortly after he became attorney general in 2003 and continued when he became district attorney in 2007. Kline accused the abortion providers of violating state law and covering for pedophiles by not reporting pregnancies of underage girls. He sought medical records of former patients to prove his case.

The ethical allegations against Kline include charges that he:

•Told the Supreme Court that his investigation wasn’t seeking identities of specific women who received abortions. But in 2005, investigators allege, Kline’s staff recorded the license plates of visitors to Tiller’s clinic and subpoenaed the guest list from a hotel frequently used by patients.

•Ignored warnings by the court not to talk about the case by discussing it on Bill O’Reilly’s Fox News show.

•Mishandled redacted medical files by storing them in an open garage, a private vehicle and the dining room of an investigator. The complaint also criticized Kline’s staff for copying the records at a Topeka Kinko’s on Kline’s last day as attorney general.

•Misstated the whereabouts of the records. Kline took some copies of the Tiller records with him when he became district attorney but denied doing so before a Shawnee County judge and the Supreme Court.

•Relied on data that Kline’s staff knew to be flawed to justify the investigation before a judge.

“This disciplinary proceeding is not about whether abortion is right or wrong,” Hazlett wrote in a letter outlining the allegations to Kline’s attorneys. Instead, “We will argue that Mr. Kline’s strong personal anti-abortion beliefs interfered with his judgment.”

In his formal response, Kline denied any wrongdoing and said his actions were consistent with traditional investigative methods.

Indeed, an internal report by Hazlett’s own investigators seemed to clear Kline of wrongdoing. The 2008 report was prepared by a Topeka attorney tasked by the disciplinary administrator with reviewing the evidence against Kline.

“After reviewing the substantial documentation in this case, it is the opinion of these investigators that there is not probable cause to prove that Phill Kline violated any of the rules of ethics,” the report concluded.

Kline is regarded highly by many anti-abortion groups. A webcast last week designed to bolster support for Kline — and raise money for his legal defense — included testimonials from leaders in the anti-abortion movement and conservative politicians such as Kansas Secretary of State Kris Kobach. About 4,000 people listened in.

Troy Newman, president of Operation Rescue, said Kline was being judged for his anti-abortion views. He worried that the hearings might scare other prosecutors away from investigating abortion clinics. He said he had little doubt that the panel would recommend disbarment.

“This is just a political vendetta against a man with the audacity to take on Planned Parenthood,” Newman said. “How many times are they going to crucify this guy?”

Hearings on the allegations were initially set for last year but were delayed at Kline’s request to give his lawyers more time to prepare.

Sunday, February 20, 2011

When he was chief justice of the Texas Supreme Court, Tom Phillips presided over several cases involving political redistricting.

Now a partner in the Baker Botts law firm, the 61-year-old attorney is revisiting the issue from a different perspective as a $10,000-a-month legal adviser for the House of Representatives.

As lawmakers plunge into the task of redrawing congressional and legislative districts, an impressive array of legal talent is springing into action, underscoring the likelihood of court challenges to whatever the Legislature produces.

In fact, the first lawsuit was filed even before the census numbers came out this week.

Attorney Michael Hull of Austin, representing three Texas voters, sued numerous state and federal officials in an effort to ensure that only citizens are factored into redistricting calculations. The lawsuit contends that counting illegal immigrants in political districts is unfair and illegal.

The House and Senate have brought in outside attorneys to help guide lawmakers through the legal thicket accompanying redistricting. Minority advocacy groups are fielding legal teams that include lawyers who have battled redistricting cases all the way to the Supreme Court. Many lawmakers directly affected by redistricting will likely retain legal counsel as they seek to protect their political turf.

"I guess the redistricting process employs a lot of lawyers," said Sen. Craig Estes, R-Wichita Falls, a member of the Senate redistricting panel.

The 82nd Legislature's foray into redistricting effectively began Thursday with the release of detailed census data that will be used to draw new boundaries for the state's expanded congressional delegation as well as for the 150 members of the Texas House and the 31 members of the state Senate.

Hispanics and blacks, who drove most of the population growth over the past decade, are demanding that the new districts adequately reflect their expanded presence in the electorate.

The Texas attorney general's office will represent the state on any challenge that winds up in court, but leaders of the House and Senate contracted with outside legal advisers to make sure that emerging redistricting plans comply with the Voting Rights Act, legislative officials say.

The Justice Department is required to review election changes in Texas to prevent the dilution of minority representation.

The contract with the Baker Botts firm calls for a $10,000-a-month fee to Phillips and up to $500 an hour for any other attorneys who might assist, according to the speaker's office.

Baylor University professors David Guinn and Mike Morrison will advise senators on their redistricting plans at the hourly rate of $400 apiece, according to Senate officials.

The Senate has a $100,000 cap on the outside legal advice.

The contract with Baker Botts is uncapped, but officials in the House, which has almost five times as many members as the Senate, may seek to renegotiate the contract because of the state's budget problems.

"It is important to the House as an institution and to the people of Texas that the legislative map be upheld against any court challenge, and working with our lawyers on the front end is the best way to achieve that result and minimize costs on the back end," said Tracy Young, spokeswoman for House Speaker Joe Straus.

Phillips said he will advise the speaker and House leaders on whether House redistricting plans will comply with federal law.

The contract will remain in force through any trial.

"The past history has always been that someone brings a lawsuit," said Phillips, who began working for the House on Sept. 1. Phillips, who was chief justice of the state's highest civil appeals court from 1988 until 2004, said the court dealt with at least four substantial redistricting issues during his tenure, as well as "some minor procedural questions."

"I'm on a different side of the bench now," he said, "but I've been to the rodeo before."

With redistricting under way in statehouses nationwide, the Mexican-American Legal Defense and Educational Fund has set up an unprecedented 12-state legal project that will focus heavily on Texas.

"It'll be a bigger project than we've ever had before," said Nina Perales of San Antonio, the fund's director of litigation who will head the coast-to-coast project.

Perales has extensive experience in redistricting challenges and participated in Supreme Court arguments on a 2003 Texas redistricting plan that the court ordered redrawn.

Gary Bledsoe, president of the Texas NAACP, said his organization has a "great team" of two career voting-rights experts and four civil-rights attorneys.

"It will be very expensive," he said.

Political parties and affiliated groups are also poised for action.

Texas Republican Chairman Steve Munisteri said the state party decided not to put a legal team in place as a cost-saving measure but has formed an advisory group on redistricting and will support other like-minded organizations legally engaged in the issue.

Kirsten Gray, spokeswoman for the Texas Democratic Party, said, "We expect that a number of experienced redistricting lawyers will be working with various Democratic officeholders, organizations and the party."

Plaintiff lawyers involved in Merck & Co.’s $4.85 billion Vioxx settlement are accusing some of their colleagues of attempting to hog the lion’s share of more than $315 million in fees spawned by the accord.

Attorneys who lead a court-appointed committee that allocates fees are arbitrarily deciding fee awards, with a small number of firms getting a rate of $2,205 an hour for their work while others are assigned a $21 hourly rate for handling depositions of witnesses and poring through records, objecting lawyers contend in court filings in New Orleans.

Objectors like Turner Branch contend the committee’s division of the Vioxx fees “is unjustified, inexcusable, and lacking any rational basis,” according to a Feb. 9 court filing. Branch, a New Mexico-based plaintiff attorney, is seeking $3.9 million in fees. The committee initially awarded him about $281,000, yet listed zero in its recommendation to the judge, according to court filings. Branch didn’t immediately return a phone call seeking comment.

Merck won 11 of 16 Vioxx lawsuits that went to trial before agreeing in November 2007 to settle almost 50,000 claims of users who blamed the drug for heart attacks and strokes. Lawyers who worked on a consolidation of Vioxx cases before U.S. District Judge Eldon Fallon in New Orleans are slated to split $315.3 million in fees for their work on the cases.

Special Master

Fallon, who is overseeing all Vioxx cases filed in federal courts around the U.S., yesterday appointed a special master to oversee the fee split submitted last month by the so-called Vioxx Fee Allocation Committee, said Houston-based plaintiff attorney Mark Lanier. The committee, appointed by Fallon, includes lawyers representing nine of the 109 firms in the settlement pool.

More than 15 firms objected to the recommendations of the committee, which includes prominent plaintiff lawyers, such as Lanier, who won a $253 million verdict against Merck in the first trial over Vioxx, and Montgomery, Alabama-based Andy Birchfield, who helped negotiate the 2007 settlement.

“Out of the 100-plus law firms that are receiving a fee out of the settlement, very few are satisfied with how much they are getting overall,” Lanier said today in a phone interview. “But the committee worked very hard to come up with something equitable. I believe the majority of law firms involved have found the division to be something they can live with.” $40.9 Million Each

Chris Seeger, of Seeger Weiss LP in New York, and Birchfield, from the law firm of Beasley Allen, are slated to get the largest share of fees at $40.9 million for each firm. They are followed by Herman Herman Katz & Cotlar LLP in New Orleans with $32.5 million.

Lanier’s $27 million and Philadelphia-based Levin Fishbein Sedran & Berman’s $21.4 million in fees round out the top five awards, according to the FAC’s recommendation, filed with the court on Jan. 19.

Seeger and Birchfield serve as co-lead counsel for the fee committee. Like Lanier, Russ Herman of Herman Herman Katz is also a member of the committee. Seeger, Birchfield and Herman didn’t return phone calls seeking comment.

Fallon ruled in October that common-benefit fees would total 6.5 percent of the $4.85 billion settlement, less than the 8 percent initially sought by lawyers. 562,944 Hours

The lawyers doing the common-benefit work billed for 562,944 hours at 109 law firms, Fallon said last year. They took more than 2,000 depositions, reviewed more than 50 million documents, briefed and argued more than 1,000 motions, conducted trials nationwide and negotiated a settlement, Fallon said.

Fallon appointed Patrick Juneau of Lafayette, Louisiana, as the special master to review the FAC’s recommendations, Lanier said.

“While the FAC makes very abstract statements about its process, it provides virtually no information that concretely describes its allocation methodology,” Kathy Snapka of Snapka, Turman & Waterhouse LLP in Corpus Christi, Texas, said in court papers filed Feb. 4 objecting to her allocation of $75,000.

Snapka, who won a $32 million jury verdict that was later cut to $8.73 million, is seeking $12 million for her work, according to court papers. Snapka didn’t return phone calls seeking comment.

The FAC’s analysis is “arbitrary,” Benedict Morelli with New York-based Morelli Ratner said in a Feb. 2 court filing. He said the committee’s allocations were “particularly disturbing” since it awarded about $230 million, or 74 percent of the total fund, to nine law firms that have representatives on the fee-allocation group.

In its recommendation to the court, the fee committee said it considered the type of work done by each firm and the “value” the work contributed to the litigation, developing a point system to evaluate the lawyers. The number of hours submitted wasn’t a dominant factor in deciding awards, the committee said. $750,000 in Fees

Among other firms awarded fees are Los Angeles-based Girardi & Keese with $20.1 million, Weitz & Luxenberg PC in New York with $20 million and $15.6 million for Levin Papantonio Thomas Mitchell Eschner & Procter PA in Pensacola, Florida.

Robert Arceneaux, a plaintiff attorney in Metairie, Louisiana, who was appointed as co-lead counsel for fee objectors, is calling for an investigation into possible “side deals” involving Birchfield, Seeger, Herman and Michael Stratton, an attorney with Stratton Faxon in New Haven, Connecticut, according to a Feb. 4 filing. 8 Percent of Settlement

Stratton served as liaison for a group of objectors initially opposed to a steering committee’s plans to request that 8 percent of the Vioxx settlement be designated for legal fees, according to papers filed by Arceneaux on behalf of plaintiff lawyers Eric Weinberg in New Jersey and Chris Placitella of Cohen Placitella & Roth in Philadelphia.

In a July 27 meeting, Herman, Birchfield, Stratton and Seeger agree to recommend that fees total 7.5 percent in exchange for an $18.5 million payment to the list of objectors, according to a transcript of the meeting filed with Arceneaux’s court papers. Stratton mentions nothing about the payment to Fallon in a letter citing the agreement the next day, according to a copy of the letter filed by Arceneaux.

Stratton didn’t return a phone call left at his office.

In her filing, Snapka acknowledges that she received two checks from Stratton and was never given a “clear understanding of the source of the funds or the ability of anyone to distribute funds without court order,” according to court papers.

The case is Vioxx Products Liability Litigation, MDL-1657, U.S. District Court, Eastern District of Louisiana (New Orleans).

Monday, February 14, 2011

Attorneys for a Colorado man who falsely claimed to be a decorated war veteran told a federal appeals court this week that a law making such lies illegal gives the government too much power to regulate speech.

Lawyers for Rick Strandlof filed a brief with the 10th U.S. Circuit Court of Appeals on Wednesday arguing that the Stolen Valor Act is unconstitutional because the government didn't show it had a compelling reason to restrict that kind of speech, even if it is false.

The law makes it a crime punishable by up to a year in jail to falsely claim to have been awarded a military medal. It doesn't require that the perpetrator receive any tangible gain or that any victim suffer a tangible loss.

Strandlof was arrested in 2009 after claiming he was a former Marine who was wounded in Iraq and had received the Purple Heart and Silver Star. He founded an organization in Colorado Springs that helped homeless veterans.

Prosecutors have acknowledged the claims were false.

A federal judge in Denver threw the case out in July, agreeing with Strandlof's lawyers that the law violated free speech rights.

The U.S. attorney for Colorado appealed to the 10th Circuit, saying government has at least two compelling reasons for muzzling such falsehoods: protecting the value and integrity of military medals, and keeping the public from becoming suspicious of anyone who claims to have received one.

Strandlof's lawyers' latest brief states, "There is no right to lie."

"But protecting the reputation of an inanimate object or fighting public cynicism hardly seem compelling government interests, not when it means censoring and punishing speech that causes no harm" besides offending the public, the brief says.

The 10th Circuit hasn't indicated when it will rule.

The law has also been challenged in California. That case is before 9th U.S. Circuit Court of Appeals.

Attorneys who have contributed $2,500 or more and firms that have donated $3,500 or more to judicial candidates would be barred for two years from appearing before those judges under a new rule Chief Judge Jonathan Lippman will outline this week.

The chief judge said in an interview that he would unveil the new requirement during his 2011 State of the Judiciary address at the Court of Appeals in Albany on Tuesday.

Judge Lippman, who said he had the authority to impose the rule on his own, noted that court administrators have been considering the new rules since the U.S. Supreme Court's decision in Caperton v. A.T. Massey Coal Co., 129 U.S. 2252 (2009).

In that ruling, a 5-4 Court held that a West Virginia Supreme Court judge should have recused himself because he had received large campaign contributions from executives of a coal company in a case before him.

The judges of New York's Court of Appeals, the state's top court, are appointed, as are judges of the New York City Family and Criminal Courts. Other state judges—about three-quarters of the 1,300—are elected and frequently receive campaign contributions from lawyers who appear before them.

Judge Lippman said administrative judges will review contributions to judges made by lawyers or their law firms. When contributions to a certain judge exceed the new limits, the attorney's or firm's case will not be assigned to that judge.

Judge Lippman said his approach would relieve judges and attorneys from having to "raise their hands" and recuse themselves when there has been a large contribution.

Proposals to limit lawyers' campaign contributions have been controversial in the past.

A task force chaired by former Fordham Law School dean John Feerick recommended in 2003 that judges be required to recuse themselves whenever a party objected that an opponent, or the opponent's lawyer, had within the last five years donated more than $500 to a judge's campaigns (NYLJ, Dec. 3, 2003).

The court system decided not to adopt the rule after hearing from bar groups that the rule was unworkable because many upstate communities only had one judge and most lawyers practicing before them had contributed to the judge's campaign.

However, the size of the contribution threshold recommended by Judge Lippman could alleviate that concern. He said that he did not know how many judges or lawyers would be affected.

Information about political contributions is public record and widely available Judge Lippman pointed out.

"We are not casting any aspersions on anyone," he said. "But over the years, we are not oblivious that this has been an issue… Campaign contributions are matters of public record. So the fiction that we previously had that judges don't know who contributed to them is not really compatible with the society we live in today."

He added, "By not assigning cases in a particular situation, we are doing this systematically and in a more policy-directed way that treats judges fairly without making them raise their hands" and recuse themselves.

The Feerick commission reported in 2006 that escalating costs were undermining the public's confidence in the judiciary (NYLJ, Nov. 16, 2006).

The task force cited a Marist College poll in which more than 80 percent of the New Yorkers responding said contributions to judges could have some or a great deal of influence on judges' rulings and that people contributing to judges' campaigns should not be allowed to appear before them.

Sunday, February 6, 2011

Officers and directors of BP Plc, pursuing cost-cutting over safety, ignored “red flags” that could have prevented the explosion of the Deepwater Horizon drilling rig in the Gulf of Mexico, lawyers for investors said.

The Louisiana Municipal Police Employees’ Retirement System and other investors claim BP executives and directors breached their fiduciary duties to the company by ignoring safety and maintenance for years before BP’s Macondo well exploded April 20. The investors seek reforms in BP management and damages from the executives and board members to be paid to the company.

“Despite repeated guilty pleas, warnings, employee deaths and injuries, and criminal and civil penalties imposed on the company by numerous federal and state regulators, the defendants continued to systematically cut budgets,” the investors’ lawyers said in a court filing yesterday. “The defendants’ decisions and deliberate inaction caused one of the largest environmental disasters in the history of the U.S.”

The investors’ suit, a so-called derivative claim brought on behalf of the company, is combined with other shareholder actions in federal court in Houston. The Louisiana pension fund initially filed the derivative lawsuit in May, within weeks of the explosion, and was joined by similar claims by other investors. Lawyers for the investors filed a combined amended complaint, adding details to their claims.

Hundreds of Lawsuits

The lawsuit is among hundreds filed in U.S. courts after the well explosion and sinking of the Deepwater Horizon in April, which set off the largest offshore oil spill in U.S. history. Injury, economic loss and environmental claims are combined before a federal judge in New Orleans.

U.S. District Judge Keith P. Ellison in Houston is overseeing three categories of BP investor claims consolidated in his court -- derivative suits brought on behalf of the company, shareholder securities fraud suits claiming diminished share value and claims by BP employees alleging losses from mismanagement of their retirement savings funds.

The lawsuit names as defendants current and former executives and board members including Chief Executive Officer Robert W. Dudley, former CEO Anthony B. Hayward and Chairman Carl-Henric Svanberg. The plaintiffs include the City of New Orleans Employees’ Retirement System and the Southeastern Pennsylvania Transportation Authority.

‘Reputational Harm’

The executives and board members pursued or allowed BP to pursue a reckless course that led to the Deepwater Horizon incident, the investor lawyers said. “In addition to the tragic loss of life, the disaster is anticipated to cost the company at least $40 billion in damages, permanent reputational harm and intense government scrutiny.”

BP continued cost-cutting policies that pre-dated the explosion at its Texas City refinery in 2005 that killed 15 workers, despite findings by multiple reports linking this strategy to the blast, the investors’ lawyers said.

“In 2009 alone, defendants cut BP’s operational costs by 15 percent,” according to the complaint. “This reduction in budgets and manpower further undermined the company’s ability to operate safely as personnel were stretched even thinner and resources that should have been devoted to maintenance, monitoring and addressing crucial safety failures in every aspect of the company’s operations were diverted.”

‘Next Catastrophe’

“Any reasonable director sitting on the BP board before the Deepwater Horizon disaster would have recognized that when it came to the next catastrophe, the question was not ‘if,’ but rather ‘when’ and ‘how bad.’”

The lawyers contend that a series of events and regulatory fines since the Texas City explosion should have convinced executives and managers of the need for policy changes. BP’s neglect of company pipelines in Alaska caused a March 2006 rupture that spilled 267,000 gallons of crude oil at Prudhoe Bay and led to $20 million in civil and criminal fines against BP, according to the complaint.

The company’s internal study into problems at the Alaskan pipeline operations, by Booz Allen Hamilton in March 2007, found that “BP’s top-down budget targets provided a ‘budget box’ in which activities, materials and projects had to fit,” according to the complaint.

Safety Violations

Federal safety regulators fined BP more than $5 million for “willful” safety violations at its Ohio refinery from 2006 to 2010, the investor lawyers said. Federal regulators and prosecutors fined BP more than $150 million in combined civil and criminal penalties for safety and environmental violations at the Texas City plant and the company’s failure to bring the site into compliance after the fatal 2005 blast, according to the complaint.

The investors are seeking reimbursement of costs for pursuing the lawsuit, including attorneys and experts’ fees, along with unspecified damages to be paid to BP by the individual directors and executives for the company’s losses as a result of the alleged breaches of fiduciary duty.

The lawsuit also asks that the defendants account for profits and benefits, including salaries, bonuses and stock options, obtained through their alleged misconduct. Any money recovered would be placed in a trust for the company’s use.

The case is In re BP Shareholder Derivative Litigation, 4:10-cv-03447, U.S. District Court, Southern District of Texas (Houston).

A team of lawyers with ties to Oakland City Hall can represent young men accused in a city lawsuit of being gang members, a judge said Thursday.

City Attorney John Russo is seeking a civil gang injunction against 40 men, saying they are Norteño members who terrorize the Fruitvale neighborhood by dealing drugs and battling rivals. He wants to put the men under a curfew and bar them from hanging out together inside a 2-square-mile zone. Violations could mean as much as six months in jail.

Russo's office sought to remove defense lawyers from the firm Siegel and Yee, because Oakland City Councilwoman Jane Brunner works there and because the head of the firm, Dan Siegel, is an unpaid adviser to Mayor Jean Quan.

The dispute has widened a rift between two of the city's most powerful officials, Russo and Quan, even though the city attorney represents the mayor's legal interests.

At a hearing in Alameda County Superior Court, Judge Robert Freedman said the lawyers seeking to represent the alleged gang members had placed a "firewall" between their work and the city's actions. He noted that Brunner had promised to recuse herself from any decision related to the proposed injunction.

The ruling buoyed the 14 defendants who sat in the first two rows of Freedman's courtroom in Oakland - two of whom used canes to walk because of gunshot wounds. Many say they are not gang members, having put past troubles behind them, and would be unfairly punished by the injunction.

Now, the team of attorneys - who include Siegel's son and employee, Michael Siegel - will seek to represent all the men covered by the proposed injunction, including several who are behind bars.

Defendants covered by injunctions in other cities around the state have often struggled to hire lawyers. Criminal defendants have a right to an attorney, even if they can't afford one, but there is no such provision in civil court.

"I was pretty excited about that," defendant Michael Muscadine, 24, said of the ruling. The attorneys "stepped up from day one. If they weren't here, I don't know where I would have turned to."

The city is scheduled to ask for a preliminary injunction at a hearing Feb. 16, although that date is also in contention. Michael Siegel said his team needed more time to prepare, but Deputy City Attorney Rocio Fierro said Fruitvale residents should not have to wait for protection.

"We want the people of Oakland to have their day in court," Fierro said.

The legal battle, along with the case itself, has stirred up strong emotions.

Some activists at Thursday's hearing said the injunction unfairly singles out Latino men who grew up in difficult circumstances.

Fierro suggested that the activists were standing up for the men's "criminal interests."

Complicating matters, attorneys for the city told the judge that the City Council had the authority to force Russo to drop the lawsuit. It's not clear how the council would vote on that question.

At City Hall on Thursday, Quan said she was frustrated that the council had not weighed in on the Fruitvale injunction or a previous one that a judge approved in the northern part of the city. She said such a court order may be effective in the short term, but asked, "Does it make sense to have the entire Fruitvale district off-limits?"

Quan said she would sit down next week with Police Chief Anthony Batts - or his successor, if he leaves - to discuss whether the injunctions are a valuable tool for officers.

By Demian Bulwa and Matthai Kuruvila, dbulwa@schronicle.com and mkuruvila@sfchronicle.com